X AGAINST A, B, C AND D [2016] ScotSC 4 (22 August 2016)

X AGAINST A, B, C AND D [2016] ScotSC 4 (22 August 2016)

Failure to designate defenders as executors dative in the instance does not render the action fundamentally incompetent where proceedings were raised timeously against persons with an interest in the estate; the defect is one of practice, remediable by amendment, and the court will allow the pursuer to amend the writ to reflect the defenders' capacity as executors dative.

Citation
[2016] SC EDIN 54
Parties
Pursuer: X; Defender: A; Defender: B; Defender: C; Defender: D
Jurisdiction
Scotland
Judgment Date
22 August 2016
Procedural Posture
Family Action (section 29 Family Law (scotland) Act 2006) / Interlocutory Judgment on Competency and Amendment
Outcome
Matter put out by order to allow pursuer to amend instance; action not dismissed; all questions of expenses reserved.
Legal Topics
Cohabitants' Rights on Intestacy, Section 29 Family Law (scotland) Act 2006, Competency of Proceedings, Designation of Parties in Special Capacity, Time Limits for Applications
Succession Law Family Law Civil Procedure Cohabitants' Rights on Intestacy Section 29 Family Law (scotland) Act 2006 Competency of Proceedings Designation of Parties in Special Capacity Time Limits for Applications

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Parties

X

Pursuer

A

Defender

B

Defender

C

Defender

D

Defender

Procedural Posture

Family Action (section 29 Family Law (scotland) Act 2006) / Interlocutory Judgment on Competency and Amendment

Legal Issues

  1. 1 Whether failure to designate defenders as executors dative in the instance renders the action incompetent under section 29 of the Family Law (Scotland) Act 2006
  2. 2 Whether the six-month time limit in section 29(6) is jurisdictional and precludes amendment after expiry
  3. 3 Whether an action can competently be raised against persons with an interest in the estate if no executor is appointed

Ratio Decidendi

Failure to designate defenders as executors dative in the instance does not render the action fundamentally incompetent where proceedings were raised timeously against persons with an interest in the estate; the defect is one of practice, remediable by amendment, and the court will allow the pursuer to amend the writ to reflect the defenders' capacity as executors dative.

Court Disposition

Matter put out by order to allow pursuer to amend instance; action not dismissed; all questions of expenses reserved.

Orders

  • Matter put out by order for further procedure on 19 November 2015 at 10 am at the Sheriff Court, Edinburgh.
  • Pursuer allowed to lodge minute of amendment to designate defenders as executors dative.